CAN A PLAINTIFF RECOVER FOR THE LOST CHANCE OF A BETTER RECOVERY BROUGHT ABOUT BY MEDICAL MALPRACTICE?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994).

This case addresses the following issue:

Can a plaintiff recover for the lost chance of a better recovery brought about by medical malpractice?

Receiving prompt and correct medical treatment can mean the difference between a full recovery and lifetime effects of an accident. Id. at 203. This case dealt with whether or not an individual has a cause of action against a doctor that fails to provide adequate medical care, and that inadequate care causes the individuals injuries to be more permanent than they would have been with adequate care. Id. Ultimately, the court found that such an individual could file suit to recover for the lost chance of better recovery. Id.

Plaintiff was involved in a severe car crash. Id. at 201. Her injuries included deep lacerations in both of her knees. Id. She was transport to a nearby hospital and treated by Defendant. Id. Without completing x-rays or even a complete physical exam, Defendant began suturing Plaintiff’s legs to close her wounds. Id. However, Plaintiff had experienced damage to her nerves and arteries in her legs that Defendant had not found. Id. Defendant then transferred Plaintiff to another hospital nearby. Id. This hospital was not equipped to treat the severe nerve and artery injuries Plaintiff was suffering from, and when these conditions were discussed at the second hospital, Plaintiff had to be transferred again. Id. Ultimately, Plaintiff received the proper treatment too late, and lost all use of her legs. Id. Plaintiff filed suit against Defendant for her lost chance of recovery that would have allowed her to retain use of her legs. Id.

Kansas had recognized a claim for lost chance of survival in prior cases, but had never considered if lost chance for a better recovery was appropriate under Kansas law. Id. at 203. The court noted that other states had recognized such an action. Id. at 206. These states had recognized that public policy protects the quality of life, rather than simply life itself, which is of great value to both society and the individuals themselves. Id.

Weighing all the options, the court found that Kansas law does allow for a claim based on lost chance for better recovery. Id. at 218. A plaintiff must show that she was suffering from a medical condition, sought treatment from defendant, defendant’s treatment was inadequate, and because of that inadequate treatment Plaintiff suffered the loss of a chance for better recovery. Id. However, the lost chance must be “substantial loss,” rather than a theoretical or de minimus loss. Id. at 219.

In this case, Plaintiff had clearly suffered a substantial loss. Id. Had he injuries been recognized through an adequate examination, she could have retained the use of her legs. Id. Thus, her claim for lost chance of better recovery was valid. Id.